Congress Negotiating Final Version of 'Patients' Bill of Rights'

By Christine Hall | July 7, 2008 | 8:19 PM EDT

( - The House and Senate are trying to negotiate a compromise version of the Patients' Bill of Rights. The bill would give patients greater ability to sue health insurance companies and, in the House-passed version, employers for health care policies and decisions. It would also create a patient appeals process for decisions made by health insurers.

The plans have been the subject of much election year wrangling between President Clinton and congressional Democrats on one side and congressional Republicans on the other side.

Each chamber previously passed its versions of the bill, mainly directed at Health Maintenance Organizations (HMOs). "The purpose of the bill is to restore legal rights in dealing with HMOs," said John Stone, a spokesman for House bill sponsor Charlie Norwood (R-GA).

"The root problem of every horror story you've ever heard with HMOs is that these federally governed, managed care plans are the only industry in America that has a congressionally-mandated shield against any legal responsibility for their actions," Stone said.

The bill, Stone says, is an attempt to fix a 1974 federal law known as ERISA that allows patients to sue their health insurance companies for the cash value of a wrongfully denied treatment but not for a resulting death or injury.

In 1974, patients had greater control over health care decisions such as what doctor to see and what treatment to get. As a result, the ability to sue a health insurance company did not seem as important. Federal and state government employees, along with the self-employed, are exempt from the 1974 law.

But some business groups and policy experts say the Patients' Bill of Rights is flawed and dangerous.

Business and trade associations are waging a last-ditch battle to exclude employer liability from the compromise plan, as the Senate version already does.

"Contrary to what supporters of Dingell-Norwood-Kennedy claim, unlimited health care lawsuits will do nothing to improve health care," said Samuel L. Maury, President of the Business Roundtable, speaking at a recent press conference in Washington, DC.

Because the bill would, for the first time, allow health care-related suits against employers, the business groups say employers will simply stop offering health insurance to employees.

"By forcing employers to think twice about the coverage they currently offer their employees, unlimited lawsuits could cost hard-working families certain benefits they've come to rely on and could even cost them their health insurance," said Maury.

Supporters of the bill say that wouldn't happen because of the new appeals process. "That will probably eliminate all lawsuits out of this bill to begin with," said Stone.

"If you have a dispute over care, it's taken care of before you get injured or die from lack of care," he said. "If [a treatment] is legally binding on the plan, and they have to provide it, and you need it, and it's in the contract, you're going to get it," Stone said.

Grace-Marie Arnett, President of the nonprofit Galen Institute agrees with Maury that more lawsuits will threaten health insurance for many Americans.

According to Arnett, however, lawmakers are not even addressing the true problem with America's health care system.

"The right answer is to give people the opportunity to own their own health insurance plans," said Arnett, who opposes the Patients' Bill of Rights.

"If people were buying contracts separately and didn't like their coverage, then they would be able to change insurance companies or sue a company directly," said Arnett. "They wouldn't need to have this huge regulatory encumbrance that this bill would create," she said.

"Because of complicated tax laws, employers are the ones who negotiate with the insurance companies on behalf of employees," said Arnett. "What that means is that the employee is a pawn in the exchange between employers and insurance companies of who's going to cover them for health insurance," she said. "As a result," said Arnett, "employees feel very disempowered."

Under the current tax code, government gives employers the ability to deduct from their taxes the cost of providing employees with health insurance, a deduction not given to individual Americans. That disparity, says Arnett, created the employer-owned health care system we have today and effectively shut out a market for individually owned health insurance.

According to Arnett, instead of the Patients' Bill of Rights, the solution is to let people deduct insurance costs from their income tax. "If you begin to create a parallel system where some people have health insurance that they're purchasing on their own with tax credits they get directly, then you begin to show what a new [health insurance] world would look like," said Arnett.

"People would start to see that they could buy health insurance on their own, just like they do with car and homeowners insurance. It doesn't have to be run through the employer," she said.